"View Article as Seen in Long Island Business News"

By Reaz H. Jafri

Long Island is a diverse region. Many of our leading businesses are owned, managed or staffed by individuals who are not US citizens or green card holders—let's call these individuals foreign workers (FW)—who are here on different work and student visas. The success of Long Island's national research laboratories, hospitals, universities, sports teams, financial institutions, pharmaceutical companies, R&D centers, etc. is dependent on attracting the best and brightest talent from around the world. Logically, these individuals need to obtain some sort of an employment visa or green card to be able to lawfully work in the US. This article will not discuss the nuances of the many types of visas; rather, it will provide a broad overview of the key issues employers should be aware of when employing FWs.

An FW is authorized to work based on the grant of permission by the United States Citizenship & Immigration Service (USCIS), which is a part of the Department of Homeland Security (DHS). Since we are talking about "employment", the US Department of Labor (DOL) and NYS Department of Labor are usually involved in the immigration process. Before considering hiring an FW, employers must assure that the FW is authorized to work in the US. Except in very limited cases, this requires an employer to file a petition to obtain some type of work visa for the FW.

Here is where the fun starts.

Each of the several visas for which an FW may be sponsored has very specific requirements—and failure to comply with applicable USCIS and DOL requirements may result in the FW falling out of status as well exposing an employer to significant liability.

Under existing immigration laws, employment visas are typically available only to "skilled workers" or those jobs that require a minimum of a bachelor's degree. Furthermore, the FW must have a bachelor's degree or its equivalent in a field related to the job. This rather simple analysis is not always so and requires experienced immigration counsel to review a case before hiring an FW. Once a decision to hire an FW is made, it is imperative that a carefully drafted application be filed with DOL and/or USCIS so as to avoid delays and denials. Lesser skilled FWs can be hired on a temporary basis as trainees or seasonal employees.

What happens after an employer successfully hires an FW? If a valued employee, the employer often wishes to permanently retain the FW. Consequently, the employer must sponsor the FW for a green card. For most jobs, this requires the employer to file an Application for Permanent Employment Certification (LC) with DOL. The LC process is very involved, designed to test the job market and will result in approval only if no qualified US workers can be found.

In instances where an FW possesses unique skills, has achieved a level of acclaim in her/his field, made an impact in her/his field or is otherwise so exceptional, outstanding or extraordinary, the employer can bypass DOL and sponsor the FW directly for a green card. This is frequently the case for executive-level employees and those engaged in R&D, scientific research, academia, sports & entertainment and creative professions.

Regardless of whether an employer hires an FW on a temporary visa or sponsors the FW for a green card, compliance with USCIS and DOL regulations is critical. It is every employer's obligation to verify the employment eligibility of all workers by properly completing and keeping on file an Employment Eligibility Verification Form (Form I-9). Although the I-9 is a relatively simple form, experience shows that nearly all employers are in violation of the I-9 requirements and at risk for substantial fines and penalties. In a recent case, a family-owned business on Long Island was visited by officers of Immigration & Customs Enforcement (ICE) for an I-9 audit. In reviewing the I-9s of the company 150 employees, ICE found more than 120 technical violations and fined the company more than $60,000 even though all employees were legally authorized to work in the US!

Besides the I-9 audits, employers can expect to be visited by DHS or DOL officials regarding the status, working conditions or other information related to FWs. Therefore, employers should be diligent in assuring compliance with the several applicable regulations. While attracting the best and brightest is critical to the growth and success of Long Island's economy, employing them should not and need not expose employers to any risk.